Gruyair v. Lee
| Decision Date | 03 October 2011 |
| Docket Number | 11 Civ. 0048 (DAB) (JCF) |
| Parties | ALEXIS GRUYAIR, Petitioner, v. WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND
RECOMMENDATION
Alexis Gruyair, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County, for attempted murder in the second degree and assault in the first degree. Mr. Gruyair challenges his conviction on the grounds that: (1) the trial judge's failure to alert defense counsel of a jury note and to respond to the note violated his constitutional rights; (2) the trial judge's failure to respond to the jury note at issue violated his constitutional rights; (3) he was denied effective assistance of counsel by his trial counsel's failure to obtain expert analysis and technical enhancement of security camera footage instrumental to his defense; and (4) the judge's failure to show the jury note at issue to the defense rendered his counselincapable of providing effective assistance effective assistance.1 For the reasons set forth below, I recommend that the petition be denied.
On April 8, 2004, a man wearing a black hooded sweatshirt shot Omar Holmes multiple times at El Rancho Jubilee ("Jubilee"), a Manhattan restaurant and nightclub. (Respondent's Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus ( ) at 2). Eyewitnesses, including Mr. Holmes, later identified Mr. Gruyair, who was at Jubilee that night, as the shooter. (Resp. Memo at 2; Tr. at 169, 281-82).2 Police arrested the petitioner at a hotel in Newark, New Jersey on April 13, 2004. (Tr. at 487-89).
On April 26, 2004, the petitioner was charged by a grand jury with attempted murder in the second degree and assault in the first degree. (Resp. Memo. at 2-3). He pled not guilty to these charges. (People's Response to Defendant's Motion Pursuant to Criminal Procedure Law 330.30(3) ("330 Response"), attached as Exh. E to Answer Opposing Petition for a Writ of Habeas Corpus("Answer"), at 6). On January 18, 2005 Justice William Wetzel of the New York State Supreme Court, New York County, denied Mr. Gruyair's suppression motions, and the case proceeded to trial two days later. (330 Response at 6; Resp. Memo. at 3).
At trial, the prosecution introduced testimony that Mr. Gruyair and Mr. Holmes met in 1999 at the home of Mr. Holmes' friend Kelvin.3 (Tr. at 156). Sometime between that meeting and the shooting at Jubilee, Kelvin informed Mr. Holmes that he owed the petitioner money. (Tr. at 156-57). Sometime thereafter, Kelvin shot the petitioner and was arrested. (Tr. at 157-58). Following the shooting, in November 2003, the petitioner offered Jennifer Rosado, a mutual friend of both Mr. Holmes and himself, $10,000 tell him where he could find Mr. Holmes in order to "set him up." (Tr. at 264-67). She declined. (Tr. at 267).
On April 8, 2004, Mr. Holmes made plans with his girlfriend Jackie Sanchez, and her friend Lorraine Castillo, to meet at Jubilee. (Tr. at 161-63, 401). Ms. Castillo arrived at about 11 p.m. and went to the "VIP booth," a section of the main room separated by a raised booth that contained a table, chairs, and a love seat. (Tr. at 402-04). Customers in the VIP booth werevisible to those in the adjacent section of Jubilee. (Resp. Memo. at 6) (citing Exhibits 8G-8H, photographs depicting the VIP booth). Ms. Sanchez arrived soon after with a friend. (Tr. at 438-39). Another friend, Luisa Tavares joined them around 11:30 p.m. (Tr. at 278, 290-91). At approximately midnight, Mr. Gruyair also arrived at Jubilee. (Footage from Jubilee's security cameras ("Footage"), attached as Exh. R to Answer; Resp. Memo. at 7). He and several other individuals sat at a table in the back of the restaurant. (Footage; Resp. Memo. at 7, 8). Mr. Holmes arrived at Jubilee at approximately 12:30 a.m. and joined his friends in the VIP section. (Tr. at 163-64, 238).
At 1:06 a.m., Mr. Gruyair left his table and exited Jubilee through a side door. (Footage; Resp. Memo. at 8). Twelve minutes later he reentered Jubilee, now accompanied by another man. (Footage; Resp. Memo. at 8). Both were wearing black hooded sweatshirts. (Footage; Resp. Memo. at 8). The sweatshirt of one of the men -- according to the prosecution it was Mr. Gruyair -- had a white logo or lettering across the front. . The petitioner returned alone to the table he had occupied earlier. (Footage; Resp. Memo. at 8).
When Mr. Gruyair reached his table, he pushed back his hood, handed a black jacket to one of the men at the table, said something to all four men sitting around it, and pulled his hoodback up. (Footage; Resp. Memo. at 8). The four men got up and left the table. (Footage; Resp. Memo. at 8). The petitioner left his jacket on the chair and walked toward the VIP booth. (Footage; Resp. Memo. at 8).
Mr. Holmes was sitting in the VIP booth, with Ms. Sanchez on his lap. (Tr. at 166-67). Her back was to the entrance of the booth. (Tr. at 452). Ms. Tavares was standing outside the booth, talking to a friend when a man wearing a black hooded sweatshirt pushed past them and entered the booth. (Tr. at 281-82, 306, 309-10, 317). Ms. Tavares saw the man's face and recognized him as Mr. Gruyair. (Tr. at 281-82). The man approached Mr. Holmes, spoke to him in Spanish, and shot him in the left shoulder. (Tr. at 168-70). Mr. Holmes was able to see the man's face and identify him at Mr. Gruyair immediately after being shot. (Tr. at 169). Mr. Holmes pushed Ms. Sanchez off his lap and stood up, but the petitioner shot him again. (Tr. at 170-71, 247, 283, 311, 443). Mr. Holmes attempted to struggle with the petitioner, but was shot in the chest again and fell to the ground. (Tr. 171-73, 247-48, 251-52, 257). Mr. Gruyair then shot Mr. Holmes in the back. (Tr. 173, 251-52, 257). According to Ms. Tavares, who was trapped under Mr. Holmes when he fell, the petitioner shot Mr. Holmes twice more and then ran toward the back of the restaurant. (Tr. at 284, 306, 312-15).
In the immediate aftermath of the shooting, the video camera outside Jubilee's side door recorded a man in a black hooded sweatshirt fleeing the restaurant, followed by a crowd of people running out the door. (Footage; Resp. Memo. at 10). A few seconds later, another man in a black hooded sweatshirt with a white logo -- agreed by both parties to be the shooter and identified by the prosecution as Mr. Gruyair -- exited Jubilee through the same side door. (Footage; Resp. Memo. at 10). As he did so, he tucked what appeared to be a gun into his waistband. (Footage; Resp. Memo. at 10-11).
David Goldstein, the petitioner's counsel at trial, elected not to call any witnesses. (Affirmation of Kerren Misulovin in Support of the Petitioner's Motion to Set Aside Verdict dated May 28, 2008 ("440 Aff."), attached as Exh. F to Answer, ¶ 16). Instead, Mr. Goldstein's strategy focused on impeaching the prosecution's witnesses and arguing, based on the security camera footage, that the man shown exiting Jubilee after the shooting was not in fact Mr. Gruyair. (Decision dated Dec. 22, 2008 ("440 Denial"), attached as Exh. I to Answer, at 7-8).
With regard to the security camera footage, Mr. Goldstein stated in his opening that:
(Tr. at 26). Similarly, in summation, he argued that:
After the shooting, within five seconds . . . the same guy comes out with the hat, with the white around his neck, sticking something into his waistband, which you could certainly conclude was the gun that he used to shoot Omar Holmes. . . . [B]ut you will see that the only evidence consistent with who is the shooter in this case is that man with that hat with the label, and that is not Alex Gruyair.
(Tr. at 568-69). Mr. Goldstein did not obtain expert analysis or enhancement of the footage in preparation for trial. (440 Aff., ¶¶ 37-39). However, he successfully elicited from Mr. Holmes testimony that Mr. Gruyair had no motive to shoot him. (Tr. at 210). He further attacked Mr. Holmes' in-court identification of Mr. Gruyair by confronting him with multiple instances, both in the immediate aftermath of the shooting and the next day, in which Mr. Holmes stated that he could not identify the shooter. (Tr. 231-34). Similarly, under cross-examination, Mr. Goldstein obtained testimony from Ms. Tavares that when questioned by police soon after the shooting she had not provided them with the shooter's name. (Tr. at 285). He also impeached her claim to haveidentified Mr. Gruyair as the shooter to a detective the following day by introducing the detective's handwritten notes of the conversation, which did not include Mr. Gruyair's name. (440 Aff., ¶ 23).
The jury's deliberations lasted from January 26 to January 28, 2005. (Resp. Memo. at 25-26). Over the course of those three days, the jurors returned numerous notes to Justice Wetzel, asking for exhibits, for testimony to be read back, for further legal instructions, for a VCR with pause function, and for a clearer version of the security camera footage; they also requested an adjournment on the afternoon of January 27. (Jury Notes I-VIII, attached as Exh. B to Answer; Resp. Memo. at 25). The ninth note, labeled Court Exhibit IX ("Jury Note IX"), was sent to...
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